State v. Sullivan

• Decision Date: 15 February 2017
• Docket Number: 51,181–KA,51,180–KA
• Parties: STATE of Louisiana, Appellee v. Voltaire SULLIVAN, Appellant
• Court: Court of Appeal of Louisiana — District of US

216 So.3d 175

STATE of Louisiana, Appellee

v.Voltaire SULLIVAN, Appellant

51,180–KA

51,181–KA

Court of Appeal of Louisiana, Second Circuit.

February 15, 2017

LOUISIANA APPELLATE PROJECT, By: Chad M. Ikerd, Counsel for Appellant

J. SCHUYLER MARVIN, District Attorney, HUGO HOLLAND, JOHN M. LAWRENCE, Assistant District Attorney, Counsel for Appellee

Before WILLIAMS, LOLLEY, and GARRETT, JJ.

GARRETT, J.

The defendant, Voltaire Sullivan, was convicted of three counts of distribution of cocaine and one count of distribution of methamphetamine. He was later adjudicated and sentenced as a habitual offender to serve 60 years at hard labor on each count, to be served concurrently, without benefit of parole, probation, or suspension of sentence. He now appeals his convictions and sentences. For the following reasons, we affirm the convictions. We amend the sentences and affirm as amended.

FACTS

A confidential informant ("CI"), working with the Minden Police Department, made three controlled purchases of illegal drugs from Sullivan. On May 24, 2013, the CI purchased cocaine and what was originally thought to be Ecstasy ("MDMA"), but which was later determined to be methamphetamine. On May 28 and June 4, 2013, the CI made more purchases of cocaine. Sullivan was arrested and charged by bill of information with three counts of distribution of cocaine and one count of distribution of MDMA, which was later amended to distribution of methamphetamine.

Sullivan was tried by a jury and, on March 25, 2015, was found guilty as charged on all four counts. Sullivan was originally sentenced on June 29, 2015. In December 2015, he was charged as a habitual offender. The bill of information alleged that Sullivan had four prior felony convictions, including possession of marijuana, third offense; distribution of cocaine; and two separate convictions for possession of cocaine. After a hearing, the trial court found Sullivan to be a fourth felony offender, vacated his prior sentences, and sentenced him to serve 60 years at hard labor, without benefit of parole, probation, or suspension of sentence, for each of his underlying convictions in this matter. The sentences were to be served concurrently.

Sullivan appealed, arguing that there was insufficient evidence to support his convictions, the trial court erred in allowing the state to amend the bill of information, and the 60–year hard labor sentences were constitutionally excessive for a nonviolent offender.

SUFFICIENCY OF THE EVIDENCE

Sullivan asserts the state failed to sufficiently prove he was guilty of distribution of narcotics. He claims that videos submitted by the state as evidence do not show that he distributed drugs. He also urges that the handling of the evidence by the police after each buy was questionable because the narcotics were stored in a police captain's locker for months before being turned over to officials for testing. These arguments are without merit.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 2001–1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Carter , 42,894 (La.App. 2d Cir. 1/9/08), 974 So.2d 181, writ denied , 2008–0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005–0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La.App. 2d Cir. 1/14/09), 1 So.3d 833, writ denied , 2009–0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 1994–3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to the factfinder's decision to accept or reject the testimony of a witness in whole or in part.

State v. Eason , 43,788 (La.App. 2d Cir. 2/25/09), 3 So.3d 685, writ denied , 2009–0725 (La. 12/11/09), 23 So.3d 913 ; State v. Hill , 42,025 (La.App. 2d Cir. 5/9/07), 956 So.2d 758, writ denied , 2007–1209 (La. 12/14/07), 970 So.2d 529 ; State v. Randle , 49,952 (La.App. 2d Cir. 6/24/15), 166 So.3d 465 ; State v. Casaday , 49,679 (La.App. 2d Cir. 2/27/15), 162 So.3d 578, writ denied , 2015–0607 (La. 2/5/16), 186 So.3d 1162.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Speed , 43,786 (La.App. 2d Cir. 1/14/09), 2 So.3d 582, writ denied , 2009–0372 (La. 11/6/09), 21 So.3d 299 ; State v. Parker , 42,311 (La.App. 2d Cir. 8/15/07), 963 So.2d 497, writ denied , 2007–2053 (La. 3/7/08), 977 So.2d 896 ; State v. Randle , supra ; State v. Robinson , 50,643 (La.App. 2d Cir. 6/22/16), 197 So.3d 717.

The testimony of a paid confidential informant goes to the weight of the evidence, not its sufficiency. See State v. Nelson , 46,915 (La.App. 2d Cir. 2/29/12), 86 So.3d 747.

To present sufficient evidence of distribution of a controlled dangerous substance ("CDS"), the state must prove the following elements: (1) delivery or physical transfer of the CDS to its intended recipient; (2) guilty knowledge of the CDS at the time of the transfer; and (3) the exact identity of the CDS. State v. Anderson , 46,724 (La.App. 2d Cir. 11/2/11), 78 So.3d 176.

Discussion

Captain Dan Weaver of the Minden Police Department testified as an expert in narcotics and undercover drug purchases. Weaver and Captain Marvin Garrett were in charge of investigating Sullivan, who was known to the officers. They met with a CI who had been referred to them by a narcotics officer with another law enforcement agency. Weaver and Garrett determined that the CI could buy drugs from Sullivan.

On May 24, 2013, the CI and his vehicle were searched to establish that the CI did not have any drugs or money with him. He was given $500 with which to make a drug purchase, was outfitted with video surveillance equipment, and was instructed to come straight back to the officers after completing the transaction. A video of the transaction that occurred that day was played for the jury. It shows the CI driving up to a location, walking up to a house, going inside, and discussing drugs with Sullivan. The CI returned to the officers with $250 in cocaine and some pills because Sullivan did not have $500 in cocaine.

On May 28, 2013, the officers followed the same procedure of searching the CI and his vehicle, and outfitting him with video surveillance equipment. The second recording, which was played for the jury, shows the CI meeting with Weaver and Garrett and being given $500 in cash and instructed to buy cocaine from Sullivan. The CI called Sullivan, who said he had cocaine for sale. The CI drove to Sullivan's house, where he was let into the house by Sullivan, and a quick transaction occurred. The CI returned to his vehicle and showed on camera the drugs purchased from the defendant. The CI then drove back to Weaver and Garrett and turned the drugs over to them.

On June 4, 2013, the same procedure was followed, and the CI again purchased cocaine from Sullivan. The video of that transaction was played for the jury. The third recording shows the CI being given $500 by Weaver and Garrett to purchase cocaine from Sullivan. The recording shows the CI going up to the same house and being let in by Sullivan. Another quick transaction occurred and the CI prepared to leave the house. He conversed with Sullivan briefly and Sullivan made comments about the quantity of drug business he engaged in. The CI showed the cocaine on camera, returned to Weaver and Garrett, and turned the drugs over to them.

At trial, Weaver identified the drugs purchased by the CI. He stated that the drugs were locked in a file cabinet in his office from the date of the transactions until early August 2013. He said that he had the only key. Weaver kept the drugs locked in his office to protect the identity of the CI and to allow the CI to make several purchases before his identity was revealed by court proceedings. Weaver testified that officers try to get several buys from one suspect during an investigation. After that point, the drugs were turned over to Lieutenant Ronald Payton, the evidence supervisor with the Minden Police Department. Payton testified that he received the drugs from Weaver on August 6, 2013, and transported them to the North Louisiana Criminalistics Laboratory on August 8, 2013, where they were received and logged in by Carla Pettis. She testified that she received the drugs from Payton.

The drugs were analyzed by Alana Brauer of the North Louisiana Criminalistics Laboratory, who testified at trial that they were cocaine and methamphetamine, not MDMA.

The CI testified that he volunteered to make undercover drug purchases, and a friend placed him in contact with Weaver and Garrett. He was paid $300 for his participation in each transaction and did not act as a CI in order to receive a reduction or dismissal of any criminal charges. He admitted to having prior convictions for possession of a Schedule II CDS and disturbing the peace. The CI testified that he viewed the videos...